MOUNT VERNON – Fifth District appellate judges ruled on July
13 that St. County Chief Judge John Baricevic whisked potential jurors through
the principles of a fair trial, prejudicing a domestic battery suspect.

The appellate court granted a new trial to Andre Jackson,
who faced 60 days in prison and 18 months on probation.

Presiding Justice Judy Cates wrote that Baricevic’s errors “threatened
to tip the scales of justice.”

She found it “difficult to conclude that these errors did
not impact the verdict of the jury.”

Justices Melissa Chapman and Randy Moore concurred.

The Justices also criticized prosecutor James Fuld, finding he
presented deficient testimony from alleged victim Sheena Berry and three other
witnesses.

Berry married Jackson after his arrest but before his trial.

They clashed on Jan. 5, 2013, when Berry found a picture of
another woman on Jackson’s telephone.

After the clash, Berry left their home to go to her job at
St. Elizabeth’s Hospital.

On the way she called supervisor Dawn Peach and described
the incident.

State’s attorney Brendan Kelly charged Jackson with two
counts of aggravated domestic battery, one for his actions on their first floor
and one for his actions on the second floor.

Kelly also charged him with three counts of domestic
battery.

Baricevic brought the case to trial on March 11, 2014.

He said to the panel of potential jurors, “Do you understand
and accept that Mr. Jackson, who sits here accused of a crime, is presumed
innocent of the charge against him, that the presumption of innocence stays
with Mr. Jackson throughout the trial and is not overcome unless from all the
evidence you believe that the state has proved Mr. Jackson guilty beyond a
reasonable doubt?”

“Anybody disagree with that?” he said. No one did.

“Do you understand this means further that the state of
Illinois, represented by Mr. Fuld, has the burden of proving Mr. Jackson’s
guilt beyond a reasonable doubt?” Baricevic said.

“Mr. Jackson does not have to prove his innocence. Mr.
Jackson does not have to present any evidence or testify unless he chooses to
do so, and if he does not, you are not to hold that against him.”

“Anybody disagree with that?” he said. No one did.

After selection of a jury, but outside of its presence,
defense counsel James Ellis asked Baricevic if he reviewed the four principles of a fair
trial.

Baricevic said, “I think I did.”

“I mean, you can see what the appellate court says,” he said.
“I think I complied.”

When Berry took the stand, she said she dropped a petition
for a protective order against Jackson and wanted the charges against him
dropped.

Nurse Capps testified about injuries she observed, but
admitted she didn’t know how they occurred or whether Berry exaggerated.

Officer Weinel testified that he didn’t observe any redness around
Berry’s neck, and that he had no firsthand knowledge of what happened.

Supervisor Peach testified that she observed redness on
Berry’s neck but that it had faded by the time Weinel arrived.

Jackson, the sole witness for the defense, testified that he
stuck out his left arm and made contact with Berry’s neck as she charged him
and swung her fist.

He said he never choked her and didn’t hear her gasp for
air. He also said that she hit him in his face and on his shoulder and arms.

Jurors found him guilty of aggravated battery on the first
floor, not guilty on the charge from the second floor, and not guilty on the
three lesser charges.

On appeal, Jackson successfully argued that Rule 431(b)
required Baricevic to ask each juror if they understood and accepted the four
principles.

Cates wrote, “Under Rule 431(b), the trial court may
question potential jurors individually, or as a group, but it must allow each
prospective juror to respond when asked whether he or she understands and
accepts the principles stated in the rule.”

The rule is intended to end the practice of making a broad
statement followed by a general question concerning a juror’s willingness to
follow the law, she wrote.

She also wrote that failure to ask whether jurors understand
the principles constitutes error alone.

She wrote that Baricevic collapsed the second principle into
the first and collapsed the third and fourth principles into the second.

Cates rejected the state’s claim that jurors would have
convicted Jackson anyway, writing that she was far from convinced that the
evidence was overwhelming.

She wrote that Capps, Weinel and Peach did not have
firsthand knowledge of what happened.

“The quality of their testimony is weak and inconsistent,”
she wrote.

She wrote that Berry’s testimony offered little clarity, and
her injuries were consistent with Jackson’s version of what occurred.